State v. Eagle

• Decision Date: 26 March 1998
• Docket Number: No. 1 CA-CR 97-0504.,1 CA-CR 97-0504.
• Citation: 196 Ariz. 27,992 P.2d 1122
• Parties: STATE of Arizona, Appellee, v. George Roosevelt EAGLE, Appellant.
• Court: Arizona Court of Appeals

992 P.2d 1122

196 Ariz. 27

STATE of Arizona, Appellee, v. George Roosevelt EAGLE, Appellant.

No. -0504.

Court of Appeals of Arizona, Division 1, Department D.

March 26, 1998.

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Division, and J.D. Nielsen, Assistant Attorney General, Phoenix, for Appellee.

Dean W. Trebesch, Maricopa County Public Defender by Anna M. Unterberger, Deputy Public Defender, Phoenix, for Appellant.

OPINION

WEISBERG, Judge.

¶ 1 George Roosevelt Eagle ("defendant") appeals his convictions and sentences on multiple counts of kidnapping, aggravated assault, sexual abuse, and sexual assault. For the following reasons, we affirm.

FACTS

¶ 2 In the early morning hours, L.W. awoke to the sound of someone opening or closing the door of her Phoenix apartment. L.W. had been sleeping in a bedroom with her four young daughters. Her friend, T.T., was sleeping in another bedroom. A man appeared in the doorway to the bedroom and called L.W. by name. L.W. could not see the man clearly at first, but when he stepped further into the room, she recognized him as defendant. L.W. knew defendant as the boyfriend of one of her friends.

¶ 3 Upon entering the bedroom, defendant grabbed L.W.'s arm and placed a knife to her neck. He told her not to scream. He then said that he was high on PCP, that he and his girlfriend were "over with," and that he "had nothing else to live for." As he took L.W. into the adjacent hallway, defendant told her to remove her clothes.

¶ 4 T.T. was also awakened by the sound of the door. Thinking it might be her boyfriend, she walked out into the hallway. There, she saw defendant holding a knife to L.W.'s throat. Before T.T. could react, defendant grabbed her and pulled her next to L.W. Threatening both women with the knife, he forced them to go back into T.T.'s bedroom and ordered them to disrobe.

¶ 5 Defendant told both women to lie on the bed. He then forced L.W. to perform oral sex on him. On more than one occasion during the assault, defendant engaged in oral contact with L.W.'s breasts. He also ordered T.T. to perform oral sex on him and engaged in vaginal intercourse with her.

¶ 6 Defendant then asked the women for some form of identification and informed them that, if they called the police, he would have "his family and friends come back for [them]." After telling L.W. that he would "be back," defendant finally left. L.W. immediately telephoned the police.

¶ 7 Defendant was indicted on two counts of kidnapping, one count of aggravated assault, three counts of sexual assault, one count of sexual abuse, and one count of burglary. A jury acquitted him of the burglary charge, but convicted him on all remaining counts. The trial court found that defendant was on release from confinement when he committed the offenses. See Ariz.Rev.Stat. Ann. ("A.R.S.") § 13-604.02(A) (Supp.1997). Defendant was sentenced to presumptive terms on all counts, with the sentence for aggravated assault and one of the kidnapping counts to be served concurrently, and all other sentences to be served consecutively. His consecutive sentences totalled 55.5 years in prison. Defendant timely appealed.

ISSUES

¶ 8 Defendant raises four issues on appeal:

I. Did the trial court err in denying his Batson challenge to the state's peremptory strike of a Hispanic juror?

II. Did the trial court err in giving the jury a Willits instruction different from the one defendant requested?

III. Did defendant's convictions and consecutive sentences for the kidnappings and sexual offenses constitute double jeopardy?

IV. Did defendant's consecutive sentences for the kidnappings and sexual offenses violate A.R.S. section 13-116?

DISCUSSION

I. Defendant's Challenge To The Peremptory Strike of a Hispanic Juror

A. Batson v. Kentucky

¶ 9 Relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), defendant argues that the state improperly exercised one of its peremptory strikes to remove a Hispanic juror from the venire. Pursuant to Batson, once the opponent of a peremptory challenge has made a prima facie case of racial discrimination, the proponent of the strike must come forward with a race-neutral explanation for the strike. See476 U.S. at 96-98,106 S.Ct. at 1723-24. The United States Supreme Court recently held in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), that the proponent's explanation need only be race-neutral. In other words, "a `legitimate reason' is not a reason that necessarily makes sense, but a reason that does not deny equal protection." Id. at 769, 115 S.Ct. at 1771. Once the proponent provides a legitimate race-neutral explanation, the trial court must decide whether the opponent of the strike has proven purposeful racial discrimination. See id. at 767, 115 S.Ct. at 1770.

¶ 10 In this case, defendant challenged the state's peremptory strike of D.A., a Hispanic member of the venire. The state objected that defendant had failed to make a prima facie case that it had exercised its strike in a discriminatory manner. The trial court found that defendant did make a prima facie case, but that the state had provided a race-neutral basis for the strike and that defendant did not prove purposeful racial discrimination.

¶ 11 We agree with the trial court's ultimate denial of defendant's Batson challenge. The prosecutor explained that she struck D.A. because he "appeared young, as opposed to many of the other jurors," and because he was "extremely nervous" while answering the jury questionnaire. Relying on our supreme court's decision in State v. Cruz, 175 Ariz. 395, 399, 857 P.2d 1249, 1253 (1993), defendant nevertheless argues that the state's justification for striking D.A. was "wholly subjective" and therefore insufficient to overcome a prima facie showing of discrimination absent some form of objective verification. But even assuming that defendant made a prima facie showing of discriminatory intent in this case, we reject that argument. As we recently held, Purkett "eliminated" the "objective verification requirement" of Cruz. State v. Henry, 191 Ariz. 283, 286, 955 P.2d 39, 42 (App.1997). But see State v. Trostle, 191 Ariz. 4, 12, 951 P.2d 869, 877 (1997)

(refusing to examine the "continued validity" of Cruz in light of Purkett ). Because the state's explanation was "race-neutral," as the United States Supreme Court defined that term in Purkett, the trial court did not abuse its discretion in concluding that the state satisfied the second step of the Batson analysis.

¶ 12 Nor did the court abuse its discretion in finding that defendant failed to meet his burden of proving that the state struck D.A. because of his ethnic origin, the third step in the Batson analysis. See Purkett, 514 U.S. at 767,

115 S.Ct. at 1770. Although not dispositive, the fact that the state accepted other Hispanic jurors on the venire is indicative of a nondiscriminatory motive. See Turner v. Marshall, 121 F.3d 1248, 1254 (9th Cir.1997). In addition, the record here does not indicate that the state failed to exercise peremptory challenges on non-minority jurors who "appeared young" or were "extremely nervous," a fact that might have shown that the state's justifications for striking D.A. were merely pretextual. See id. at 1252 (noting that peremptory challenges "`cannot be lawfully exercised against potential jurors of one race unless potential jurors of another race with comparable characteristics are also challenged.'")(quoting Doss v. Frontenac, 14 F.3d 1313, 1316-17 (8th Cir.1994)). On this record, therefore, we find no error in the trial court's denial of defendant's Batson challenge.

B. State Constitutional Challenge to the Peremptory Strike

¶ 13 Defendant also argues that the prosecution's peremptory strike of D.A. violated the impartial jury clause of article 2, section 24 of the Arizona Constitution. Because defendant did not raise this state constitutional argument before the trial court, the issue is waived absent fundamental error. See State v. Holder, 155 Ariz. 83, 85, 745 P.2d 141, 143 (1987)

(absent fundamental error, even constitutional claims are waived if not raised at trial).

¶ 14 In State v. Rodarte, 173 Ariz. 331, 336, 842 P.2d 1344, 1349 (App.1992), Division Two of this court held that the protection afforded by article 2, section 24 is no greater than that provided by its federal counterpart, the Sixth Amendment. Also, the United States Supreme Court has held that, if the venire itself is drawn from a fair cross-section of the community, even the exercise of a peremptory strike that excludes a cognizable racial group from the jury does not offend the Sixth Amendment. See Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990)

.

¶ 15 Nonetheless, defendant urges this court to reject Rodarte and to hold that article 2, section 24 affords greater protection to criminal defendants than does the Sixth Amendment. But he offers no substantive analysis to support his argument. Nor does he indicate how the state's peremptory strike of D.A., which we have held did not violate Batson, deprived him of an impartial jury. We therefore find no violation of defendant's rights under article 2, section 24.

II. WILLITS INSTRUCTION

¶ 16 Defendant requested and received a Willits instruction in response to the state's loss or destruction of a handwritten police report. See State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964)

. Defendant expressly requested Standard Criminal Instruction No. 10 from the 1996 version of the Revised Arizona Jury Instructions ("RAJI")(Criminal):

If you determine that the State has lost, destroyed, or failed to preserve evidence whose contents or quality are important to the issues in this case, and that the explanation for the loss, destruction, or failure to preserve is inadequate, then you should assume that the evidence was unfavorable to the State. This fact alone may create a reasonable doubt

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